The Civil Union Amendment Bill

A month or so ago, I wrote about Deirdre Carter’s Private Member’s Bill that seeks to remove Section 6 from the Civil Union Act. Section 6 allows government officials to opt-out of officiating gay marriages on grounds of “conscience”.

The call for public comment on this Bill has now gone out, and you have until 4pm on October 23 to send your comments to Mr Eddy Mathonsi [email]. We can be sure that the likes of Errol Naidoo and other homophobes will be writing in to object, so please consider indicating your support for this Bill.

What follows is some text that you are free to copy-and-paste, or amend as you see fit, in order to make your submissions as painless as possible. The text is a variation on the blog post linked above, so if you read that, none of the content will be new to you.

We strongly support the proposed Bill, and the repealing of section 6 of the Civil Union Act, 2006 (Act No. 17 of 2006). Our reasons are as follows:

As Ms Carter (COPE) previously noted in her submission to the Committee, S6 creates a clear opportunity for prejudice against same-sex couples, in that “a marriage officer … could object to solemnising the marriage of a same sex couple under the Civil Union Act, but solemnise a marriage for opposite sex couples that were atheist or Muslim”.

The Civil Union Act was created exactly for the purpose of allowing same-sex couples to be married, so for it to include the possibility for state officials to refuse to provide this service is perverse and illogical.

Only 28.6% of Home Affairs branches have marriage officers who are willing to marry same sex couples under the Civil Union Act, and approximately 37% of DHA officials have requested exemption on the grounds of conscience. This means that a state service will be provided on a deeply inequitable basis to South African citizens, who are all equal under the law.

The DHA officials who are granted exemption will not be equally distributed across the country. A gay couple wishing to marry in Cape Town, or Johannesburg, might have no difficulty in doing so. But gay couples in rural areas could potentially be further prejudiced against, first by not having convenient access to state services, and second by having to spend money and time getting to a DHA branch where they might find someone who is willing to respect their rights.

If you are in government employ, you should be willing to provide equal respect and treatment to all, as prescribed in the Constitution and relevant laws. Freedom of conscience is protected at an earlier stage, in that people should not seek jobs which ask them to be impartial on such matters if they are not willing to provide equal treatment to all citizens, regardless of their (inter alia) race, gender and/or sexual identity.

State officials have a fundamental right to believe whatever they like, but public servants should not be able to pick and choose which laws they will follow or which services they will provide.

We are sympathetic to potential labour law implications following the possible repeal of S6, in that existing staff might reasonably object to conditions of service being changed. However, this is no impediment to any new job applicants being asked to affirm that they will indeed provide the same services to all citizens.

However, given the complication raised in [7] above, DHA nevertheless have a clear obligation to ensure that couples have access to officiants who are willing to officiate gay marriages, and also to ensure that people seeking gay marriages are not subjected to being “insulted and called derogatory names” by DHA officials, as is reportedly sometimes the case.